Decisive Ministerial intervention in crofting crisis is now required

West Highland Free Press - 16 September 2016In a hard hitting editorial in the latest edition (16 September 2016) of the West Highland Free Press it was made clear by the editor that he considers that the Crofting Commission needs ministerial advice and direction and that Colin Kennedy’s continuing tenure as Convener must be in doubt.

I will reproduce the editorial in question here followed by some of my own thoughts on the matter

The Crofting Commission needs ministerial advice and direction

The self-created crisis within the Crofting Commission has gone past the point where it can be healed internally.  Public and decisive ministerial intervention is now required.

On the most mundane but incendiary points which lit the blaze, the Crofting Commission can be pronounced quite wrong.

Grazings committees should have the right to determine in which manner their income is spent, under the law and to the benefit of the community.

Grazings committees such as those at Upper Coll and Mangersta should not be obliged instantly to distribute funds as dividends and then reclaim the money in order to finance improvements.

Without those commonplace – and previously widely accepted – permissions, west-coast crofting in particular would suffer.

Grazings committees, which are the voluntary foundation of the system, would become almost impossible to establish.  It should be pointed out here that crofting commissioners are paid £8,600 a year for four-and-a-half days’ work a month, and the commissioner’s convener is paid £20,300 for an eight-day month.  Grazings committee member are paid nothing.

Crofting would become even less of a communal activity and even more of a private, individual enterprise.  It beggars belief that a large reason for the recent dictatorial action by the Crofting Commission was the fact that Upper Coll grazings committee made assets available to infrastructure projects which benefited not only crofters but also the wider community.

In the three years of its existence the present Crofting Commission has managed to lose three of its seven members, and its chief executive Catriona Maclean has now packed her bags and moved on to happier pastures.

By any standards, this is a failing institution.  The response of the new crofting minister, Fergus Ewing, has been inadequate.

Last month Mr Ewing wrote a private letter to the commission’s controversial chair, Colin Kennedy.  In that letter the crofting minister told Mr Kennedy that he and the Scottish Government “wholly disagreed” with the Crofting Commission’s actions and attitudes towards grazings committees.

Most importantly, Fergus Ewing wrote that as crofting minister he considers that the law “does not require the immediate disbursement or pay out of funds by a grazings committee”.

In other words, Colin Kennedy’s interpretation of crofting law had been wrong from the start.  As a result all of his subsequent actions had been, at best, invalid.

This private letter was then leaked to the veteran BBC Highland correspondent Jackie O’Brien.  It seems probable that Mr Ewing authorised the leak in order to shore up his credentials with crofters.

That also was unacceptable.  As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility.  He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.  Colin Kennedy’s Crofting Commission is currently preparing “draft guidance” for grazings committees.  We hope that Fergus Ewing is fully involved in that exercise.  We wait to see whether that guidance will follow the Kennedy or the Ewing version of legislation.  There can be no compromise.  It is difficult to see how Mr Kennedy can emerge from the process with his £20,000 part-time post intact.

This unpleasant chain of events should not shake our belief in democracy.  We continue to believe that the entire Crofting Commission should be elected by crofters rather than composed of professional quangoteers and other government appointees.

Many hundred of crofters in large parts of the Highlands and Islands cast their votes ill-advisedly three years ago, and a lot of them will now realise that.

Thanks to the democratic system, they will have the chance to put things right at the elections next spring.  We hope that they, and the many crofters who previously chose not to vote, will take that chance.  In the long as well as the short term, the future of crofting is at stake.

View from the Crofting Law Blog

I must wholeheartedly agree with this editorial in so far as the need for “public and decisive ministerial intervention”. Indeed I suggested that in my first blog post on this sorry saga back on 25 April 2016. There have been calls since by the Crofting Federation and by crofters for the same thing. To see the West Highland Free Press support the same calls is heartening indeed and must add to the pressure on Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to do something about it.

The jury is still out as far as I am concerned about the idea of the entire Crofting Commission being elected by crofters “rather than composed of professional quangoteers and other government appointees”. The problems at the Crofting Commission seem to lie at the door of elected commissioners or perhaps an elected commissioner. Two of the government appointees (who by all accounts were very able and capable commissioners) have resigned in recent times and have yet to be replaced.

The calibre of elected commissioners may be very much down to those willing to put themselves up for election rather than the will of the crofting electorate.

With the Crofting Commission in its current mess there is a good chance that there won’t be many level headed crofters volunteering for the task of clearing that mess up come the 2017 elections. Possibly another solution is required. Answers on the back of a postcard please to Fergus Ewing MSP.

Brian Inkster

4 thoughts on “Decisive Ministerial intervention in crofting crisis is now required

  1. Donald E Meek

    I agree wholly with Brian Inkster’s concluding comments. Crofters themselves chose the Commissioners currently in post, and they must therefore accept some degree of responsibility for what has happened. They also chose the present structure for the regulation of crofting (rather than that recommended by the Shucksmith Report). A stricter application of crofting law was desired. Crofters therefore got what they asked for-and a little more to boot! The result has been far from satisfactory.

    In my view, it is not enough merely to proceed with the election of new Commissioners, if such can be found, given the loss of the existing Commission’s credibility. The entire structure must be reconsidered, and new guidelines for representation will be required. One lesson which emerges clearly from the oresent mess is that the Convener must have a properly professional knowledge of crofting law, and be ‘baggage-free’ in terms of disputes with the Commission and the Scottish Land Court.

    The working of staff within the Commission, and their roles and relationships, also demand some degree of scrutiny. How has the Commission arrived at the current impasse, given the fact that it has a legal Adviser on its staff. Who is running the office? The CE or the Convener? My own experience of the Commission has been in the context a common grazing share which became a ‘deemed croft’ in the Register of Crofts. The manner in which this was handled has certainly not increased my faith in the Commission, and argument continues, with the support of our constituency MSP.

    At the same time, the recording of the change in title of our owner-occupied croft in the Land Register is the subject of a strong separate complaint to the Registers of Scotland, as it remains unrecorded after a period of almost two years.

    All in all, crofting regulation is significantly less effective now than it has been in my sixty years of conscious association with crofting. A complete re-thinking of regulatory structures and procedures is urgently required, and not merely a change of representation. What exists is not fit for the purpose – not by a long way.

    Reply
  2. Linda Brackenbury

    Scrutiny flew out the window when crofters were asked to nominate a commissioner, what does the man in the street know about the ins and outs of running such a large institution, like that of the commission,
    why was there no vetting of nominees carried out by the commission, I mean to my way of thinking that is just downright disgraceful, there were not so many nominees that the commission could not afford to carry out background checks..if they had, they would not be going through all this just now,

    To accept someone like the convener onto their board is just plain ignorant, not so much a gorilla in their midst, as something altogether different……
    except this gorilla has another agenda all together, sheer unadulterated stupidity at the highest level.

    Reply
  3. Donald E Meek

    Crofting law is an extremely complex body of legislation, and few are qualified to understand it properly, far less to apply it correctly. There are, however, those who consider themselves experts in the field ! The misunderstandings which Brian Inkster has highlighted with regard to the supposed ‘Constable’, to say nothing of his comments on the Convener’s alleged adventures in common grazing finances, should make everyone wise – everyone, that is, with a capacity for wisdom. The existing Commissioners do not appear to be overly-endowed with that capacity. This whole business has raised huge questions about who should be appointed as Crofting Commissioners in March 2017 , that’s for sure. The new democratic approach appears to be something of a failure so far!

    Reply
  4. Linda Brackenbury

    No one should be elected by the crofters themselves, in my opinion..ordinary people with notions of what they’d like to be and not what they actually are..have no place in working for such a public body,
    Background checks are an absolute must for positions such as these..

    No one I know would want a person of dubious history to be lording it over them.

    Reply

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